If Supreme Court Justice Samuel Alito Jr. gets his way, police officers may soon be able to search through your cell phone if you are stopped for a minor violation.
The Supreme Court was closely split during a Tuesday discussion about a person’s right to privacy when it comes to their personal cell phone. Justice Alito noted that authorities have always been able to search a person’s wallet when making an arrest, and he likened the objects to one another, claiming that they both hold personal information.
“What’s the difference if the photos are in a billfold or on smartphone?” he asked. “I don’t see there’s much difference.”
While Justice Alito’s wallet may only contain pictures of his grandkids and his Costco card, Justice Elena Kagan rebuked the notion, saying individuals store vast amounts of private information in their cell phone.
“People carry their entire lives on their cellphone,” Kagan said. “[Police could download] every single email, all their bank records, all their medical records.”
Kagan hypothesized that an encounter as simple as a seat belt violation could be grounds for a search of a person’s cell phone. She felt that this was far too intrusive.
Serious Crimes
It’s uncertain where the Justices will fall on the issue, but some speculate that they’ll reach a middle ground. As California Solicitor General Edward Dumont supposed, Justices could make it legal for police to search a person’s phone only if they have been arrested for a serious crime.
Of course that would open up another can of worms, in that Justices would have to stipulate which crimes are heinous enough for an officer to bypass your 4th amendment rights without first obtaining a warrant. It’s certainly an issue we’ll keep a close eye on.
Mel Welch Comments
The Fourth Amendment to the United States Constitution (and Art. I, section 10 of the Minnesota Constitution) provides the right of a person to be free from unreasonable searches and seizures in their persons, places, effects and things. In order for the government to infiltrate these areas of privacy, they must usually have a warrant – a request by law enforcement to search a person/place and which relies upon statement of facts supporting a determination that there is likely to be evidence of a crime in a certain place, which request a judge reviews and grants/denies. These areas of “privacy” are measured by whether a person has a personal expectation of privacy in the thing, and whether society accepts that expectation as reasonable or not.
In the case discussed, SCOTUS is considering whether or not that privacy expectation extends to cell phones, which would require law enforcement to obtain a warrant before perusing the information contained within – or whether there is some other way by which law enforcement can penetrate that privacy fence. One such exception is that law enforcement may search an individual incident to arrest. In other words: where law enforcement may not typically search a person, if they have probable cause to arrest them – they may search that person as an accompaniment to the arrest.
The discussion revolves around contending positions – one articulated by Justice Alito, that searching through a wallet is the same as searching through a phone; and the other articulated by Justice Kagan, that a cell phone contains vast amounts of information and is incomparable to a wallet.
The Supreme Court has been mindful in past decisions of the role technology plays in penetrating private areas of the lives of the citizenry, and reluctant to allow the abrogation of those private areas by virtue of progress. See, e.g., Kyllo v. U.S., 121 S.Ct. 2038 (2001) (requiring law enforcement obtain a warrant prior to using technology to penetrate and look within a home). Here’s to hoping they continue to do so.
